Enoch
Mgijima Local Municipality (EMLM) has been negatively thrown into the spotlight
again after the Makhanda High Court has ordered that no further work be
undertaken in the controversial Fikile Gwadana Drive construction tender.
This
after the Independents councillors at EMLM, acting as the first applicant and
the second applicant, EC Black Contractors Forum filed an urgent application in
the high court. The municipality is the first respondent, municipal manager (MM)
Nokuthula Zondani the second and administrator Monwabisi Somana the third.
Makali Plant and Construction, the winning bidder, is the sixth respondent.
Acting
High Court judge Vuyokazi Nomcembu said the application was set in two part. In
part A, the applicants are seeking to interdict the sixth respondent from
executing any construction works on the site in the question. Part B seeks an
order reviewing and setting aside the decision by EMLM to award the “impugned
tender” to the sixth respondent.
“At
the centre of this application is the award of a tender for the construction of
a 6.7km road, Fikile Gwadana Drive, between Komani and Ezibeleni…by the first
respondent to the sixth respondent. It is not in dispute that the award of the
impugned tender constitutes administrative action,” she said.
In
January Komani-Karoo Express reported that EMLM had appointed
Makali Plant and Construction for construction work at the troublesome Fikile
Gwadana Drive in Ezibeleni. The municipality at the time said it would cost
them R98 million to construct the 6.9km stretch of road which had been handed
over to them 10 months earlier at a cost of R3 million.
In
a follow up report, local businessman and Independents councillor Ken Clark had
demanded the local authority to be transparent about the construction of Fikile
Gwadana Drive, calling it overpriced.
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The
applicants are challenging the award of the tender on the basis that proper
procurement processes were not followed, the municipality was placed under
administration and as such, Zondani’s powers to commit the municipality were
curtailed and that any action of financial nature needed the sanction of the
administrator, Somana.
The
MM denied in court papers that the municipality had an administrator although
conceding the municipality was under administration, the judgement read.
“I
interpose here to observe that although the respondents’ version is that he
appointment of (Somana) as the administrator of the first respondent expired
after six months. This notwithstanding, no explanation is given by the
respondents as to why annexure ‘EMM5’ is co-signed by (Somana) in his capacity
as an administrator of the (municipality) in August 2022.
“This
seems to lend credence to the applicants’ version that the appointment was
extended from time to time, further supported by annexure ‘RA1’ to the replying
affidavit, which depicts an extension of the appointment… from 14 October 2021
to 13 April 2022,” Nomcembu said, adding that this was at odds with the version
of the respondents that the municipality did not have an administrator.
Makali
was appointed on November 18, 2021 and a letter of acceptance by Makali the
following day for the R98-million tender. However, the judge questioned why
there were different prices and length of road to be constructed for the same
project.
She said a feasibility study by Buchule Engineers was “not a model of
clarity” on the estimated cost of the project. The report, which was prepared
to solicit funding from the department of transport, totals the cost of the
project at R99.89 million. This cost is approximately R10.09 million per km for
a 9.9km stretch of road. However, the same report, comes with a 6.8km road
which would cost the municipality R68.6 million to construct.
“As
can be seen from above, the project relates to the upgrading/ construction of
the Fikile Gwadana Road…but it appears that there are two separate distances
(lengths) of the road for which the total cost of the project was estimated. On
the one hand the report refers to a total length of 9.9km at a cost of
R99 971 489.89 million/ R99.89 million (I believe the latter may have
been a typographical error in trying to round off the total amount,” Nomcembu
said.
“On
the other hand, there is mention of a 6.8km road length and an amount of R68.6
million which is further broken down. There is, however, no explanation in the
report as to why there are two separate road lengths and two separate amounts
estimated for the project.”
Nomcembu
said Makali was interdicted from executing any further construction work on the
site, the first to third respondent were interdicted from performing any
functions and obligations a rising from any service level agreements and
contracts concluded with Makali including payments.
“The first to third
respondents are directed to furnish to the applicants, within five days of this
order, with the information relating to the tender process for the construction
of 6.7km road, Fikile Gwadana Drive between Komani and Ezibeleni, road situated
in…as set out,” she said.
The
applicants were also directed to lodge the review application contemplated in
part B of the notice of motion within 30 days of the order.
“Costs of the
application are reserved pending the outcome of the review application
contemplated in part B of the notice of motion.”
